Fast and Furious Returns

The House Oversight Committee, lead by California Republican Darrell Issa, has decided to bring suit against Attorney General Eric Holder. The underlying charges are a pseudo-scandal being overblown by Republicans who have been lacking in real Obama administration scandals to promote. And yet the suit does illustrate real and important issues with respect to the potential abuse of executive privilege, and for this reason may not be a bad thing. The contempt suit is an extension of an earlier citation of contempt by the Oversight Committee against Holder, which represented "the first time in American history that Congress has imposed the sanction on a sitting member of a president’s cabinet."

The contempt citation came from an interbranch conflict surrounding the Fast and Furious "scandal," allegedly a failed sting operation by the Justice Department that was part of the larger "Project Gunrunner" project started under the Bush administration in 2006. After Border Patrol agent Brian Terry was killed with a rifle that had been purchased in Arizona by a suspect being tracked under Fast and Furious, a fellow ATF agent claimed to CBS News that weapons like the one that killed had been obtained with the knowledge of the ATF. House Republicans amplified these charges, asserting that Fast and Furious had allowed a significant number of firearms to be illegally sold to Mexican criminal suspects. An investigation by Katherine Eban of Forbes, however, found that the ATF did not willfully permit criminals to obtain weapons, and that charges made about Fast and Furious were "replete with distortions, errors, partial truths, and even some outright lies." While criminals under surveillance by the ATF did acquire weapons, there was no policy of permitting them to acquire them as part of a sting.

The House Oversight Committee's decision to cite Holder in contempt, and then to sue him, was based on Holder's refusal—based on a claim of executive privilege—to turn over some documents related to the pseudo-scandal to the committee. Executive privilege is the idea the that the White House can prevent information from being released to Congress because certain internal communications and documents have to be kept secret for the executive branch to function properly. In this case, the Oversight Committee is charging that the invocation of privilege is unjustified, which is why Holder was held in contempt by the June vote. The lawsuit filed yesterday is seeking to get this invocation of executive privilege overturned and all of the records requested by the House subpoena turned over and the witnesses requested by the House required to testify. Whether this tactic will succeed in the courts is unclear.

As Cornell Law School's Josh Chavetz points out, the use of lawsuits against the executive branch to enforce contempt charges by the legislative branch is a very recent development—used for the first time in 1974 and for the second time in 2008—and the Supreme Court has yet to weigh in. The earlier lawsuit against the Nixon administration was rejected by the D.C. Circuit on narrow factual grounds. The House won in district court in its 2008 suit against the Bush administration, but the administration reached an agreement with the House before the suit could proceed up the appellate chain.

In short, using lawsuits to enforce findings of contempt is unproven legal ground, which when combined with the lack of clarity in executive privilege doctrine makes it hard to evaluate the claims made by both Congress and the White House. Given the extent to which Fast and Furious has been distorted, it's hard to be particularly sympathetic to the House lawsuit. And the Obama administration has not abused executive privilege—the Fast and Furious marked the first time it had invoked it. Still, the notion of executive privilege has always been a dubious and potentially dangerous concept.

When the Supreme Court ordered Richard Nixon to hand over White House tapes as part of the Watergate scandal, a typically confusing opinion by Chief Justice Warren Burger suggested that, while it was not applicable in the case at hand, invocations of executive privilege may well protect the White House from having to divulge information to Congress in the future. The contours of what justifies executive privilege have always been vague, and it's hard to say if Holder's decision to refuse to hand over documents is a reasonable application of the doctrine. The Fast and Furious scandal is, at best, small potatoes. But that doesn't mean that the contempt suit filed by the House is entirely without merit. At a minimum, it's reasonable that the Obama administration justify its invocation of executive privilege in the courts. And the judiciary should be clear that executive privilege can be invoked only in unusually and very strictly defined circumstances. Transparency should be the default rule. Obama has been restrained in invoking the privilege, but should the courts refuse to restrict this executive power, the next administration may very well deny Congress information that the public has an interest in seeing.